Tuesday, July 30, 2013

In a decision handed down earlier this month, the
Wisconsin Supreme Court avoided ruling on whether so-called “mature minors”
should be able to make decisions controlling their own medical care.

Dane
County v. Sheila W. started in February of 2012, when a 15-year-old
Jehovah’s Witness (identified only as Sheila W. in court documents) was
diagnosed with aplastic anemia, a potentially fatal condition that prevented
her bone marrow from producing blood cells.
Doctors initially treated the teenager with antibodies, but these
eventually proved ineffective, leaving her at risk of cardiac arrest and
respiratory failure. The physician treating
her determined that she would die if she did not receive a blood
transfusion.

Although their stance on the issue appears to have
softened somewhat in recent years, many Jehovah’s Witnesses believe that
transfusions are tantamount to “eating blood,” a practice proscribed by the
Bible. Sheila, in keeping with those
tenets of Witness doctrine, refused to consent to the transfusions. She informed
one physician that she "would rather die” than live with the stigma of
having received a transfusion. In a later proceeding, the teen told Dane
County Circuit Judge William Foust that a blood transfusion would be “devastating
to me mentally and physically” because it is “my body, my belief, my wishes. Sheila even went so far as to say that she
thought of considered receiving a blood transfusion equivalent to being raped.

Dane County authorities, believing that Sheila’s
health to be in serious jeopardy, took emergency custody of the teen on
February 29, 2012. The county subsequently filed a petition for protective
services, the goal being to obtain temporary physical custody of Sheila and
administer the blood transfusions. Early in March, Foust held a hearing in the hospital
and determined that Sheila’s parents were seriously endangering her health by
refusing to consent to the transfusions. He did not grant custody to the county
but rather appointed a temporary guardian, who then authorized the
transfusions.

In her appeal, Sheila W. asked the high court to
accept the “mature minor" doctrine as part of Wisconsin law. The doctrine
permits older minors who can demonstrate sufficient understanding and
appreciation of the consequences of their decision to independently make medical
treatment decisions involving their own care, without parental consent.

In a 4-3 decision, the Wisconsin Supreme Court
refused to address the substance of Sheila W.’s claim, asserting that the case
was moot since the order appointing the guardian had long since expired. The per curiam opinion for the court
acknowledged that “this case undoubtedly presents issues of great public importance.” Yet the majority decided that it would be
premature to rule on the matter before the state legislature had weighed and
passed a statute dealing with “such substantial social policy issues with
far-ranging implications.” (Unlike
Wisconsin, several other states have laws that seem to address the
applicability of the “mature minor” doctrine is cases relating to health care.)

The majority opinion drew a vehement dissent from
Justice Michael Gableman, who criticized his colleagues for ducking their
responsibility. “Life is about hard
choices, particularly for members of a state high court,” he wrote. “Unfortunately, today the only thing the
parties receive for their time and trouble before this court is abdication dressed
as modesty.”

The Sheila W.
case marked the second time in a month that state high court had ruled in a
case involving religious objections to medical treatment. Earlier in July, the justices upheld the second-degree
reckless homicide convictions of Dale and Leilani Neumann, whose daughter Kara had
died in 2008 after being treated with prayer in lieu of conventional medicine.

Monday, July 29, 2013

The Sixth Circuit Court of Appeals has declined to
rehear Romeike v. Holder, a case
involving a family of German homeschoolers who have spent the past several
years seeking political asylum in the United States.The family of Uwe and Hannelore Romeike,
backed by the Home School Legal Defense Association (HSLDA), now can only turn
to the United States Supreme Court for legal relief.

The Romeikes’ legal saga began when they became
dissatisfied with the schooling that their children were receiving in their
native Germany. It troubled Uwe Romeike
that teachers were failing to control the unruly behavior of many students, as
this disrupted the learning experiences of his own children. Also disturbing to the family were stories
used in German readers that depicted devils and witches.These same books also seemed to valorize
disobedient children.

The family came to believe that German schools were
doing nothing to build the character of their children.And worse, they became to fear that the public
school curriculum would influence their children to question Christian values.

To shield their five children (whose ages ranged
from two to twelve when the dispute began) from such influences, the Romeikes decided
to teach the youngsters at home.But
they faced a significant legal hurdle in doing so: German law has prohibited
homeschooling since at least1938.Education
officials there have explained that requiring children to attend schools
fosters social integration and ensures that “parallel societies” do not
develop.

The Romeikes were prosecuted – successfully – for
truancy.Fines eventually totaling over
$11,000 were levied, and authorities warned that they might lose custody of the
children.At one point, police visited
the home, placed the children in a van, and drove the children to school.(A second effort to force the children to
school failed when . The next time, four adults and seven children from the
Romeikes’ homeschooling support group intervened.)

To avoid such conflicts, the family fled to the
United States in 2008 and sought asylum.Their claim essentially was that they were fleeing religious persecution
at the hands of the German government.

Initially, the Romeikes were granted political
asylum by an immigration judge who found that, as homeschoolers, they had
reason to fear such persecution.Judge
Lawrence O. Burman claimed that the family had a “principled opposition to
government policy” and decried the German policy as “utterly repellent to everything
we believe as Americans.”The rights
being denied the Romeikes, he asserted, were “basic human rights that no
country has a right to violate.”

The federal government appealed that decision to the
Board of Immigration Appeals (BIA).U.S. Immigration and Customs Enforcement (ICE),
the chief investigative arm of the Division of Homeland Security, filed an appeal
claiming that homeschoolers were too “amorphous” to be a “particular social
group” eligible for asylum.The appeal
argued that “United States law has recognized the broad power of the state to
compel school attendance and regulate curriculum and teacher certification,” as
well as the “authority to prohibit or regulate homeschooling.”

The BIA sided with ICE and overturned the judge’s
finding in favor of the family.“There is no indication that officials are
motivated by anything other than law enforcement,” the court held, finding that
there was “appropriate administration of the law, not persecution.”The board found that the Romeikes “did not
establish a well-founded fear of persecution or the higher threshold of a clear
probability of persecution.”

From there, the case then went to a three-judge
panel of the Sixth Circuit Court of Appeals.Here, the Romeikes lost again, with the panel finding that “they have
not shown that Germany’s enforcement of its general school attendance law
amounts to persecution against them, whether on grounds of religion or
membership in a recognized social group.”Key to this ruling was the court’s finding that Germany applied its
truancy laws to all parents who failed to send their children to schools
outside their homes.There was no
singling out of the Romeikes because of their religious or political beliefs.

The family petitioned for a rehearing of their case
by the full court, but that move was denied.This sets the stage for an appeal to the U.S. Supreme Court.

Michael Farris, the founder and chairman of HSLDA,
says that the group is backing the Romeikes because the family “deserves the
freedom that this country was founded on.”Farris claims that the Sixth Circuit erred in ignoring the
anti-religious origins of Germany’s ban on homeschooling. He also argues that
the court failed to acknowledge the Romeikes’ rights as parents.

As they move forward with their case, the Romeikes
have drawn attention from a number of groups backing conservative Christian and
homeschooling causes.The Eagle Forum,
for instance, has argued that if the family ultimately is deported, “The
shadows of the Nazi swastika, an iconic reminder of foreign-bred despotism
around the world, will lengthen over America.”

Congressman Marlin Stutzman (R-IN) has led a group of 27
members of Congress in urging U.S. Attorney General Eric Holder to grant the Romeike family asylum. “A
decision to deny the Romeikes the opportunity to educate their children freely
is a decision to abandon our commitment to freedom,” they write.

It’s understandable that the Romeikes’ plight
resonates with such groups.Homeschooling is widespread in the United States, and it’s only loosely
regulated in some areas.For many, it’s
inconceivable that a family could be denied the opportunity to educate their
children in this manner, particular when their motivations are religious.However, the case is not really about the
protections for religious liberty and parental rights codified in American
law.Rather, it turns on the standards for
granting asylum, which are both different and far more narrow.

Wednesday, July 3, 2013

The Wisconsin Supreme Court today affirmed the convictions of Dale and
Leilani Neumann, the Wausau-area faith healers who had been convicted in 2009
for their roles in the death of their daughter, Kara.

I'll reading over the opinion this morning and providing analysis here.
I'll update as appropriate.

Chief Justice Shirley Abrahamson wrote for the court's majority, and Justice
David Prosser wrote in dissent (by himself, so it was a 6-1 ruling against the
Neumanns). There were a bunch of minor issues raised (jury instructions,
ineffective assistance of counsel, etc.), but both opinions bore down on the
apparent exemption for spiritual healing practices codified in Chapter 948 of
the Wisconsin Code.

The really core of the majority opinion: "In sum, when a parent
fails to provide medical care to
his or her child, creates an unreasonable and substantial risk of death or
great bodily harm, is aware of that risk, and causes the death of the child,
the parent is guilty of second-degree reckless homicide."

Court argues that Chapter 948 (faith healing exemption) really only
protects parents under that statute and not other laws: "... the
text of the treatment-through prayer provision, Wis. Stat. § 948.03(6), does
not and cannot lead parents to expect that they are immune from criminal
prosecution for second-degree reckless homicide."

And reiterating the above: "A reader of the treatment-through-prayer
provision cannot reasonably conclude that he or she can, with impunity, use
prayer treatment as protection against all criminal charges."

"The juries could reasonably find that by failing to call for medical
assistance when Kara was seriously ill and in a coma-like condition for 12 to
14 hours, the parents were creating an unreasonable and substantial risk of
Kara's death, were subjectively aware of that risk, and caused her death."

So the main holding seems to be: the spiritual healing exemption to child abuse
is alive and well, but it doesn't protect parents against other criminal
charges (such as second-degree reckless homicide).

The court acknowledged that the Neumanns' due process claims were like
those that worked in other states: "Hermanson v. State, 604 So. 2d 775,
782 (Fla. 1992) (When considered together, the spiritual treatment
accommodation provision and child abuse statutes failed to give parents
noticeof the point at which their reliance on spiritual treatment lost
statutory approval and became culpably negligent. The statutory scheme in place
failed to establish a line of demarcation at which a person could know his
conduct was criminal.); State v. McKown, 475 N.W.2d 63, 68-69 (Minn. 1991) (The
manslaughter statute failed to give the prayer-treating parents fair notice of
the prohibited conduct. "[W]here the state had clearly expressed its
intention to permit good faith reliance on spiritual treatment and prayer as an
alternative to conventional medical treatment, it cannot prosecute respondents
for doing so without violating their rights to due process.").

Both majority opinion and dissent are notable for their lack of reference to
broad religious liberty issues. There are no sweeping references to the
First Amendment, or Wisconsin's protections for freedom of conscience.
They are very much focused on how much protection Chapter 948's spiritual
healing provisions give parents.

Implicit in the court's opinion (I think?) is that the spiritual healing
exemption is still in place to protect parents unless they cause "great
bodily harm." So, you can abuse, but that abuse can't lead to
serious injury and/or death.

Prosser actually writes somewhat movingly in dissent: "It would be easy to
look away from such unconventional defendants and say nothing. But the issues
involved in these cases are too important for me to remain silent. First, the
facts are not as black and white as they initially appear. Second, the law
governing the facts is imprecise and quite confusing."

Prosser cuts to the heart of confusion regarding statutes: "There is a due
process problem here. On the facts before us, the statutes are very difficult
to understand and almost impossible to explain. Indeed, the statutory scheme is
so difficult to explain that if a prayertreating parent were to consult an
attorney on how he or she could prayer treat and stay within the bounds of the
law, virtually any attorney would be at a loss to reasonably advise the
client."

And he calls for legislative reform to remove ambiguity: 'This case is a
tragedy in virtually every respect. I cannot say that the result of the Neumann
trials is unjust. Nonetheless, there were and are serious deficiencies in
the law and they ought to be addressed by the legislature and the courts.
Failing to acknowledge these deficiencies will not advance the long-term administration
of justice."

Tuesday, July 2, 2013

It appears that Wednesday, July 3, will bring some resolution to the legal saga of Dale and Leilani Neumann. The Wausau, Wisconsin, couple were convicted in separate trials in 2009 for second-degree reckless homicide for their roles in the March 2008 death of their 11-year old daughter, Kara, who died from complications from diabetes. The Neumanns were charged and convicted because, in lieu of conventional medical treatment, they relied solely on spiritual means to heal Kara's illness.

I've been following the case with great interest since 2008 because Kara died not long after my book When Prayer Fails: Faith Healing, Children, and the Law (Oxford University Press, 2007) was published. For the book, I researched hundreds of similar cases dating back to the early 19th century. I thus wasn't completely surprised by how the legal issues in the Neumann case have played out over the last five years.

My sense is that the Wisconsin Supreme Court's ruling with turn on a controversial provision in the state's child abuse and neglect statutes that seems to protect parents who engage spiritual healing practices from criminal prosecution. The Neumanns were charged under another statute, but their best legal argument is that Wisconsin's laws are confusing: conduct that is protected under one part of the law is prohibited by another statute. According to this claim, their right to due process of law thus has been violated.

These cases are interesting because of the complex legal, ethical, and religious issues involved, and it's difficult to predict how they will turn out. They seem to defy conventional "conservative" and "liberal" interpretations of the law. So it's possible that we could see some odd bedfellows in the court's majority.

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Educator at University of Wisconsin-Madison, author of four books on religion and law, including The Catonsville Nine: A Story of Faith and Resistance in the Vietnam Era (Oxford, 2012). Contact: sfpeters@wisc.edu.